Chaseling v TVH Australasia Pty Ltd - [2011] NSWDC 24

District Court

New South Wales

Medium Neutral Citation: Chaseling v TVH Australasia Pty Ltd [2011] NSWDC 24
Hearing dates: 21, 22 & 23 February 2011
Decision date: 15 April 2011
Before: Levy SC DCJ
Decision:
1.Verdict and judgment for the plaintiff in the sum of $712,275;
2.The defendant is to pay the plaintiff's costs on the ordinary basis unless otherwise ordered;
3.The exhibits may be returned;
4.Liberty to apply on 7 days notice if further orders are required.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: TORTS - negligence - motor vehicles -- palletted load of boxes dislodged from tynes of forklift truck reversing down a portable ramp whilst unloading a shipping container - injury to plaintiff standing nearby - load dislodged and fell on plaintiff - whether due to negligence of driver - whether there was contributory negligence - whether injury occurred during or in the use or operation of a motor vehicle within meaning of s 3 of the Motor Accidents Compensation Act 1999;
DAMAGES - assessment of heads of damage claimed by plaintiff
Legislation Cited: Motor Accidents Compensation Act 1999, s 3
Workplace Injury Management and Workers Compensation Act 1998
Cases Cited: Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 658
Graham v Baker [1961] HCA 48; (1961) 106 CLR 340
Haines v Bendall [1991] HCA 15; (1991) 172 CLR 60
Inasmuch Community v Bright & Anor [2008] NSWCA 99
JA & BM Bowden & Sons Pty Ltd v Doughty [2009] NSWCA 82
Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254
Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 228 CLR 529
State of NSW v Moss [2000] NSWCA 133
Tchen v Nominal Defendant [2010] NSWCA 245
Vairy v Wyong Shire Council [2005] 223 CLR 442
Zotti v Australian Associated Motor Insurers Limited [2009] NSWCA 323
Texts Cited: -
Category: Principal judgment
Parties: Paul Chaseling (Plaintiff)
TVH Australasia Pty Limited (Defendant)
Representation: Mr M Perry (Plaintiff)
Mr PN Khandhar (Defendant)
Taylor & Scott (Plaintiff)
Hicksons (Defendant)

File Number(s): 2009/336695
Publication restriction: No

Judgment

Table of Contents

A.	INTRODUCTION
Nature of the case	[1]
Issues	[2] - [3]
Credit	[4]
Summary of findings	[5]
Assessed heads of damage	[6]
B.	FACTUAL BACKGROUND
Facts	[7] - [64]
Plaintiff's personal history	[8] - [9]
Circumstances of injury to the plaintiff	[10] - [17]
Injuries	[18] - [19]
Treatment	[20] - [26]
Medical and allied reviews	[27] - [57]
Disabilities that remain	[58] - [60]
Employment effects	[61] - [63]
Mitigation	[64]
C.	LIABILITY FINDINGS
Issue 1 - Negligence	[66] - [76]
Issue 2 - Whether during or in use or operation of a motor vehicle	[77] - [84]
Issue 3 - Alleged contributory negligence	[85] - [92]
D.	DAMAGES ASSESSMENT
Life span	[94]
Non-economic loss	[95] - [101]
Past loss of earnings	[102] - [104]
Future loss of earning capacity	[105] - [136]
Past loss of superannuation	[137]
Future out-of-pocket expenses	[139] - [155]
Past out-of-pocket expenses	[156]
Summary of damages assessments	[157]
E.	DISPOSITION & ORDERS
Disposition	[159]
Orders	[160]

A. INTRODUCTION

Nature of case

The plaintiff, Mr Paul Chaseling, claims damages from his employer TVH Australasia Pty Ltd, in respect of serious orthopaedic injuries he received to his lower right leg whilst working in the course of his employment with the defendant on 29 June 2006. The plaintiff's injury occurred when a palletted load of cartoned forklift spare parts fell from the tynes of the employer's moving forklift truck. At the time, the forklift truck was reversing down a metal ramp that had been placed at the entrance to a shipping container for the purpose of assisting with the unloading of that container. Before the incident, the plaintiff had been assigned to assist with guiding the forklift tynes for the initial engagement of the load in the unloading procedure. At the time of his injury, he was standing to one side of the ramp when the load dislodged and fell from the tynes of the forklift whilst it was being driven in reserve down the ramp. As a result, he sustained a crushing injury to his lower right leg.

Issues

The liability issues to be determined can be conveniently identified as follows:

Issue 1 : Whether the owner or driver of the forklift truck was negligent;

Issue 2 : Whether the plaintiff's injuries were caused by the fault of the owner or driver of the forklift truck in question in the use or operation of a motor vehicle within the meaning of s 3 of the Motor Accidents Compensation Act 1999 [" MAC Act " ], as that section applied on 29 June 2009;

Issue 3 : Whether there was contributory negligence on the part of the plaintiff.

The quantum issues raised in the proceedings were not overly controversial and for convenience, I propose to deal with them separately and in relation to the specific claimed heads of damage under which they arise.

Credit

There was no attack on the credibility of the plaintiff's testimony. There was no suggestion of any credit challenges concerning any aspect of his claim for damages. I found the plaintiff to be a reliable witness. In his evidence, he was careful to correct potential misapprehensions arising from the evidence, and he gave his evidence in a straightforward manner. I concluded that he was a truthful and reliable witness. I have accepted his evidence in its entirety.

Summary of findings

I have found that the owner and the driver of the forklift truck were negligent in the events of the incident and that such negligence was the cause of the plaintiff's injuries. I have found that there was no contributory negligence on the part of the plaintiff. I have found that the injuries sustained by the plaintiff arose during the operation or driving of a motor vehicle, within the meaning of s 3 of the MAC Act . I have assessed the plaintiff's entitlement to compensatory damages in the sum of $712,275 .

Assessed heads of damage

A total of seven claimed heads of damage required assessment. On the assumption that the MAC Act applies for the assessment of the plaintiff's entitlement to damages, as I have found to be the case, these are tabulated below, together with paragraph references, juxtaposed with a summary of the submissions of the parties and my assessments:

Head of Damage claimed by plaintiff

Plaintiff's Submissions

Defendant's
Submissions

Award

Paragraphs

(a) Non economic loss

$225,000

$125,000

$225,000

[95] - [101]

(b) Past loss of earnings

$68,576

$62,400

$62,400

[102] - [104]

(c) Future loss of earning capacity

$159,033

$100,000

$195,000

[105] - [136]

(d) Past loss of superannuation benefits

$7,543

$6,865

$6,864

[137]

(e) Future loss of superannuation benefits

$17,494

$Nil

$21,450

[138]

(f) Future out-of-pocket expenses

$50,928

$30,000

$60,000

[139] - [155]

(g) Past out-of-pocket expenses

$141,561

$141,561

$141,561

[156]

Totals

$670,135

$465,826

712,275

B. FACTUAL BACKGROUND

Facts

In the paragraphs that follow, unless otherwise stated, I set out my findings on relevant aspects of the plaintiff's background, the circumstances of his injury, the injuries he received in the incident, the treatment he obtained, the effects that his injuries had on his employment, the steps the plaintiff took in relation to mitigation of his injuries, and the remaining disabilities from which the plaintiff continues to suffer.

Plaintiff's background

The plaintiff was born in 1965. He was aged almost 41 years at the time of his injury. He was in his forty-sixth year at the time of the trial. He had left school in 1980, when aged 15 years. Since that time, apart from a period of about 18 months between 1994 and 1996, when he had to deal with some family issues, he had enjoyed a continuous work history, principally in the automotive and spare parts industry. During 1994-1996 when he was not working, he provided his services as an SES volunteer. Before the injury in question, the plaintiff enjoyed relatively good health, and he had no orthopaedic or other disabilities to his lower limbs.

On 4 May 2004, the plaintiff obtained employment with the defendant as a spare parts interpreter. His duties in that position required him to attend to customer orders of spare parts for forklift trucks. This work was carried out in the defendant's warehouse located at Unit 1, 1002-1004 Canley Vale Road, Wetherill Park. In addition to those duties, the plaintiff was from time to time, also required to attend to such other duties as his employer would allocate to him, including assisting with the unloading of the shipping container as occurred on the day of his injury.

Circumstances of injury to the plaintiff

At about 3.20pm on Thursday 29 June 2006, the plaintiff came to be injured in the course of his employment at the defendant's warehouse. This occurred whilst the plaintiff was in the course of assisting with the unloading of a shipping container of forklift spare parts, having been requested by his employer to assist a co-employee with the unloading of the container. At the time of the incident, the forklift truck was being driven by Mr Linley Barnes, a fellow employee. At the time of these events, the plaintiff did not know that Mr Barnes was not qualified by licence to operate forklift trucks. It was agreed that the forklift in question was a motor vehicle within the meaning of the MAC Act .

Ultimately, the circumstances of the plaintiff's injury were not the subject of controversy, and are conveniently and succinctly summed up by the plaintiff in his statement that comprised Exhibit "D":

"On Thursday 29/06/06 I attended my normal place of employment at TVH Australasia Pty ltd, Wetherill Park where I am employed as a Spare Parts Interpreter. I have been employed for the past 2 years.

At approximately 3.15pm I went outside to the front of the Warehouse to assist with the unloading of a 20ft container containing parts. Linley Barnes was the driver of the forklift doing the unloading of the container.

As he drove up the ramp leading into the container I was directing him to place the pallets onto the forklift. As he reversed out of the container with the pallet on and backed down the ramp, the pallet overbalanced and fell in the direction that I was standing.

I was pinned under the pallet which was lifted off me by Linley and I then noticed my right leg and foot were not lining up parallel to my body. I asked for an ambulance to be called."

In his oral evidence, the plaintiff added a little more detail to that description.

The shipping container in question was about 20 feet long but was of uncertain height. It seems to have been sufficiently high for a person to stand inside. It had previously been unloaded from a delivery truck into a position within the defendant's yard. The plaintiff had never before assisted with the unloading of this type of container, and he had never been trained to do so. He described his allocated duties on the day in question as requiring him to enter into the container on foot. This was in order to guide the tynes of the forklift into the correct position so that they would not protrude too far beyond the perimeter of the immediate load to be engaged, because if that occurred, the tynes would impinge upon the crate located behind the crates about to be unloaded.

The plaintiff stated that at the time of the incident, he knew the forklift truck driver, Mr Barnes to be a storeman in the employ of the defendant, who drove forklifts at the premises. Before the incident in question, the plaintiff did not know that Mr Barnes was not licensed or qualified to drive forklift trucks. At the time of the plaintiff's injury, the tynes of the forklift had been fitted with metal extension slippers that permitted the tynes to have an extended reach beyond the standard range of the ordinarily fitted tynes.

The plaintiff described the pallets or crates upon which the loaded boxes were resting. These were of plastic, non-timber construction. He described the loads as being cartons or boxes that were about 1200 mm wide and 700 mm deep. They were vertically stacked on the pallets to the height of two boxes, and together, they were taller than 6 feet in height. The plaintiff was not able to describe the weight of the boxes, which were not tied together, or tied down. There is no dispute that the top box of the load was about 220kgs and was heavier than the bottom box, which weighed about 70kgs. Each box was resting on its own plastic pallet. There was no controversy that the pallets were flimsy and unsuitable.

In the course of unloading the container, with the plaintiff's assistance to guide the placement of the tops of the forklift tynes, Mr Barnes had unloaded a number of loads of palletted cartons. This had occurred without incident. That process involved him taking each load and reversing the laden forklift truck down the ramp and driving the forklift to a place in the defendant's warehouse to be unloaded and stored, and then returning for the next load, each such trip being about a minute apart in time.

In the incident in question, after the plaintiff had guided the tips of the extended forklift tynes into position for Mr Barnes, so that the load was engaged on the tips, Mr Barnes moved the forklift truck out of the container and stood on the ground on the right-hand side of the forklift, in a position about 2 feet away from the ramp. The forklift truck then reversed down the ramp with the load resting by force of gravity on the tips of its tynes rather than up against the apron guard adjacent to the mast of the forklift. The plaintiff stated that whilst this reversing manoeuvre was taking place, the load of cartons shifted on the tynes, and moved over to the right. In these events, the bottom carton collapsed, leading to the cartons toppling towards the plaintiff. In this way, both cartons fell off the tynes. In this way, the boxes fell upon him without prior warning, and crushed him.

Injuries

As a consequence of the incident in question, the plaintiff suffered a crushing injury to his right tibia, fibula and ankle. This involved an open fracture dislocation of the right ankle with disruption of the inferior tibial-fibular joint. Associated with that injury was a cartilaginous left knee injury, which involved a complex tear of the posterior horn and body of the left medial meniscus. There was also a soft tissue injury to the plaintiff's right knee. The plaintiff was in constant and considerable pain and discomfort, after the initial shock from the incident had receded.

When the plaintiff subsequently came to look at his right foot, it was hanging off to the outer side, and he could see that his broken bones had penetrated the skin of his leg. In that regard, whilst he was in hospital waiting for medical attention, he said he felt humiliated as passers-by were using their mobile telephones to take photographs of his lower leg that had been deformed by injury as described.

Treatment

Shortly after his injury, the plaintiff was taken by ambulance to Westmead Hospital where he remained as an inpatient for 9 days between 29 June and 7 July 2006. Thereafter, the plaintiff was transferred to Westmead Rehabilitation Hospital. There were no hospital clinical notes or discharge summaries tendered, so the actual periods in which the plaintiff was hospitalised were not fully identified.

The plaintiff's injuries required protracted treatment, including a series of 6 separate hospital admissions for significant orthopaedic procedures. In summary, these were:

29 June 2006 - wound exploration, followed by open reduction and internal fixation of the right ankle, performed by Dr Fox;
1 July 2006 - operation for delayed primary wound closure, performed by Dr Fox;
8 August 2006 - removal of syndesmotic fixation screws and wound debridement, performed by Dr Fox;
14 November 2006 - arthroscopy of the right ankle and hardware removal from the right medial malleolus, with an ankle manipulation, performed by Dr Fox;
April 2007 - revision procedure of the right ankle for non-union affecting the distal tibia, replacement of the fixation plate, and arthrotomies, performed by Dr Newman;
18 January 2008 - arthroscopy of the left knee, performed by Dr Fox.

A 7th orthopaedic procedure has been foreshadowed for the plaintiff. This is for right ankle arthrodesis.

The reports tendered indicate that the plaintiff has been exposed to a large number of x-rays during the course of treatment. The nature of the plaintiff's ankle fracture has meant that some bony tissue remained exposed for a significant period of time whilst healing and tissue re-growth occurred. Wound healing proceeded very slowly. The plaintiff developed an early complication in which an opening appeared in the proximal fragment of his ankle fracture. He required extended antibiotic treatment for a persistent skin infection that had developed at the site where the fractured bone had penetrated the skin.

The plaintiff has had an extensive period of physiotherapy treatment. It took a long time for the plaintiff to get back on his feet. He initially struggled to get about. He wore a CAM boot for some 6 weeks following the several ankle procedures and in view of his size, he had to use specially made crutches for an extended period, before graduating to using a walking cane. He had to undergo extensive gait training on the treadmill and with hydrotherapy. Subsequent procedures have required him to wear a lightweight below knee cast.

The initial orthopaedic management and treatment was provided by Dr John Fox. On 20 February 2007, Dr Fox arranged for one of his colleagues, Dr Scott Newman, to take over the management of the plaintiff's right ankle problems. Dr Fox retained the management of the plaintiff's right knee problems.

Whilst the reports tendered do not identify all the periods of his hospital admissions, nor do they catalogue the full extent of physiotherapy and rehabilitation treatment received by the plaintiff, it is clear from the medical correspondence in evidence that the treating orthopaedic surgeons have sent to the plaintiff's general practitioner, that the plaintiff's treatment has been very extensive, uncomfortable and disruptive to the normal amenity of his life.

Medical and allied reviews

In addition to management by his treating orthopaedic specialists, the plaintiff has been examined and assessed by a number of medical and allied practitioners whose reports have been tendered in these proceedings. In the paragraphs that follow, I set out my review of the substantive effect of those reports.

The first orthopaedic surgeon to treat the plaintiff was Dr John Fox. He was responsible for the plaintiff's initial orthopaedic treatment. The plaintiff tendered a series of 17 progress reports from Dr Fox. These were respectively dated 20 July 2006, 31 July 2006, 7 August 2006, 22 August 2006, 5 September 2006, 25 September 2006, 16 October 2006, 6 November 2006, 14 November 2006, 5 December 2006, 6 February 2007, 20 February 2007, 11 December 2007, 18 January 2008 (2), 17 April 2008 and 19 May 2008.

The series of reports Dr Fox sent to the plaintiff's general practitioner is cumulatively discursive of the plaintiff's post injury problems. They informed the plaintiff's general practitioner of relevant events and assessments occurring during the time of Dr Fox's management and treatment of the plaintiff's lower right limb injuries.

Dr Fox described the initial procedure he performed, which was an open reduction and internal fixation of the right ankle fracture, followed by subsequent delayed wound closure. The fracture reduction was effected by the insertion of a long side plate with a syndesmotic screw holding a syndesmosis in place, as well as a medial malleolar fixation device, and associated clips. In his initial report, Dr Fox predicted an intensive and complicated course would follow, and he was not wrong in that regard.

By 26 July 2006, an x-ray revealed the fixation of one of the ankle fractures had sprung open and this led to the need for revisionary surgery on 8 August 2006 to remove some of the hardware and to allow for a modified treatment plan. There were difficulties in mobilising the plaintiff because of his weight in association with the nature of his fractures. The medial aspect of the wound involved a loss of tissue and required careful attention to wet and dry dressings over an extended period of time until the tissue grew over the defect and covered the exposed bone. The plaintiff experienced considerable swelling in his ankle, and had to pursue an extensive programme of physiotherapy. The progress of healing of the plaintiff's injuries followed a long and protracted course. He was also dependent upon the use of walking aids.

On 14 November 2006 Dr Fox performed what he described as a very difficult arthroscopy procedure on the plaintiff's right ankle, at which time the indwelling hardware was removed from the medial malleolus, along with some bone and synovial cartilage tissue from the ankle joint. The aftermath of this procedure proved particularly painful for the plaintiff, as Dr Fox had observed in his correspondence. The question of a return to work was being continually reviewed and postponed. The plaintiff developed osteophytes in his damaged ankle joint, along with complications such as a late syndesmotic stretch phenomenon in the lower left leg. In these events, each of the plaintiff's knees was giving him trouble. As a result of the evolving complications in managing the plaintiff's orthopaedic problems, Dr Fox decided to divide the responsibility for the plaintiff's care with the result that he passed on the management of the plaintiff's ankle problems to his colleague Dr Newman, whilst he retained the management of the plaintiff's knee problems.

In his management of the plaintiff's knee problems, Dr Fox identified patello-femoral syndrome and mild early patello-femoral arthritis of the right knee, as well as identifying a small loose bony fragment in the knee. A 6 week trial of anti-inflammatories was undertaken. The plaintiff also developed a clicking sensation in both knees. The plaintiff's left knee became affected because of altered gait as the plaintiff had become overly reliant upon his left leg when weight bearing. Dr Fox thought it was unsurprising that the plaintiff had begun experiencing problems with his left knee.

A subsequent MRI scan of the plaintiff's left knee has revealed a tear of the posterior horn of the medial meniscus. An arthroscopy was performed which confirmed the MRI findings, a small osteophyte was identified medially, and a meniscal fragment was also identified and surgically smoothed. A " fairly large tear " of the meniscus was excised. An intensive programme of physiotherapy was then commenced.

The plaintiff's left knee problems have left him with a give-way weakness of the quadriceps muscles. Further rehabilitation was prescribed for him, together with more treatment with anti-inflammatories. The plaintiff has been diagnosed with a patello-femoral type syndrome of the left knee, which requires conservative management with exercises and a gym programme.

Dr Scott Newman, who specialises in foot and ankle surgery, has provided 10 progress reports. These were respectively dated 30 April 2007, 28 May 2007, 25 June 2007 (2), 23 July 2007, 20 August 2007, 25 September 2007, 20 November 2007, 15 January 2008 and 31 October 2008.

Dr Newman took over the care of the plaintiff's right ankle problems from Dr Fox in April 2007. Dr Newman's first report confirmed that as at April 2007, which was some 16 months after the plaintiff's injury, he was still struggling with recuperation from his injury, and at that time was recovering from his 5 th orthopaedic procedure, and still faced having to undergo substantial further physiotherapy treatment. In mid 2007, the plaintiff was still encumbered by the need to use CAM boots, special shoes and intensive physiotherapy treatment. The progress of the plaintiff's right ankle involved slow but steady improvement, and required that he adhere to a dedicated regime of exercises aimed at strengthening and balancing his right ankle.

A complicating feature of the plaintiff's progress was the level of his weight, and his injury related inability to undertake or sustain significant exercise to try and lessen his weight. A related problem was that for mobility, the plaintiff was favouring his right leg, and was therefore placing over-reliance on his left leg, with an associated antalgic gait and foot deformity in the right lower leg. This led to the plaintiff experiencing problems in his left knee, for which Dr Newman referred him back to Dr Fox for management of that problem.

Dr Newman's prognosis for the plaintiff's right ankle was to recommend an ankle arthrodesis, which would involve a trade-off between the plaintiff's presently painful ankle, and a resultant painless stiff ankle. Dr Newman identified that procedure as having a significant risk of complications for the plaintiff to consider.

On 31 July 2008, at the request of his solicitor, the plaintiff was examined by Dr John Harrison, a consultant orthopaedic surgeon. Dr Harrison saw the plaintiff again on 18 January 2010 and also on 9 December 2010. Dr Harrison has provided six medico-legal reports concerning the plaintiff's situation. These are dated 31 July 2008 (3), 18 January 2010 (2), and 9 December 2010.

In Dr Harrison's first report, which was dated 31 July 2008, he described the plaintiff's injury as an open, crush force, associated with a complex open fracture dislocation of the right ankle. He related the subsequent onset of the plaintiff's left knee problems to the injury sustained on 29 June 2006. He expressed the view that as a result, the plaintiff was permanently unfit for his full pre-injury work duties. In his two further reports dated 31 July 2008, Dr Harrison confirmed that the plaintiff had achieved maximum medical improvement. He then addressed a whole person permanent impairment assessment according to WorkCover Guidelines, which do not require further analysis for the purpose of these proceedings.

In Dr Harrison's fourth report, which was dated 18 January 2010, he reviewed his earlier findings and expressed the prognosis that the plaintiff could expect to experience further deterioration and the progression of arthritic changes affecting the right ankle over time, which may ultimately lead to the need for an ankle arthrodesis. In the meantime he recommended the plaintiff use specially fashioned footwear. The second of Dr Harrison's reports dated 18 January 2010 dealt with a review of the earlier statistics based whole person impairment. It is not relevant to further analyse that report for the purpose of these proceedings as it relates to threshold questions concerning the entitlement to claim damages for non-economic loss.

In his final report dated 9 December 2010, Dr Harrison reviewed his earlier reports and corrected some minor errors of expression. He noted there had been little improvement in the condition of the plaintiff's right ankle, and noted the problems experienced by the plaintiff were exacerbated by prolonged periods of time spent on his feet. He also identified that this was accentuated because the plaintiff walked with an externally rotated right foot posture. Overall, Dr Harrison noted some further deterioration of the plaintiff's right ankle function since his last examination. He expressed the opinion that the plaintiff would be unlikely to ever be fit for his previous normal work except for specifically modified and adapted duties.

Reports were also tendered from a podiatrist and from a physiotherapist. On 23 June 2009, the podiatrist, Mr Soubra, indicated that the plaintiff required custom made footwear as a result of his injuries.

On 27 February 2009, Mr Vidaic, one of the physiotherapists who had provided treatment to the plaintiff, reported that the plaintiff had received an extensive physiotherapy programme, as well as a successful work-conditioning programme. Mr Vidaic recorded the plaintiff's " unwavering motivation to continue working to the best of his ability ". He foreshadowed significant ongoing treatment to which I shall refer in my findings concerning the plaintiff's claim for future treatment needs.

On 24 November 2009, at the request of his solicitor, the plaintiff was examined by Dr Michael Couch, a consultant occupational physician. Following that examination, Dr Couch prepared two reports dated 18 February 2010. Subsequently, Dr Couch prepared a commentary report dated 20 January 2011, in response to questions he had been asked to address on matters of whole person impairment.

In his first report dated 18 February 2010, Dr Couch's assessment was that the plaintiff would not be experiencing the ankle problems he described if he had not been injured in the incident in question. He agreed with the assessment of Dr Harrison to the effect that the plaintiff was not fit for his pre-injury duties. He recommended that significant work restrictions be placed on the plaintiff's future work duties, noting that such restrictions were inconsistent with the full range of duties of any of the plaintiff's pre-injury occupations. He also noted that the plaintiff would have difficulty with obtaining employment on the open labour market. These are matters to which I will return when dealing with the claim for damages for loss of earning capacity.

Dr Couch assessed the plaintiff's condition to be stable but anticipated that it was more likely than not that the plaintiff would experience future deterioration in the condition of his right ankle. Dr Couch thought that the plaintiff was unfit to carry out normal home maintenance tasks, and he considered that the plaintiff would reasonably require paid assistance for approximately 4 hours per week, if the assistance of family members was not available to him.

Dr Couch's second report dated 18 February 2010 dealt with issues concerning the assessment of an appropriate percentage of whole person impairment. It is therefore not necessary to analyse that report for the purposes of these proceedings other than to note the plaintiff qualifies for a percentage of greater than 10 per cent under the MAA Guidelines that permits him to claim damages for non-economic loss, subject to the determination of the liability issues that need to be addressed. Similarly, Dr Couch's final report dated 21 January 2011, assessed the plaintiff's percentage of whole person impairment under WorkCover Guidelines at 16 per cent.

On 9 December 2009, the plaintiff was examined by Dr Peter Giblin, a consultant orthopaedic surgeon. Although the referral of the plaintiff to Dr Giblin was stated to be for medico-legal purposes, the referral was at the request of Dr Philip King, the plaintiff's general practitioner. Dr Giblin has prepared 2 reports that were respectively dated 9 December 2009 and 23 March 2009. The first was addressed to Dr King, and the second was addressed to the plaintiff's solicitor.

Dr Giblin advised Dr King that the plaintiff had stiffness of the right ankle and that there was a broken fixation screw in situ in the plaintiff's right ankle. He also advised that another such screw was quite loose. He advised Dr King that his expectation was for autofusion of the ankle to occur within 5-6 years. He suggested the plaintiff try and lose weight and wear a specialised hand made and supportive lace up boot.

Dr Giblin advised the solicitor for the plaintiff that although the plaintiff's condition was stable, he thought that the prognosis was guarded because the condition would gradually deteriorate. I infer from the context that this comment was in relation to the plaintiff's right leg. He identified the cost of future surgery for ankle fusion as being of the order of $15,000, and involving at least 6 months off work, barring complications. He also predicted other associated costs. Dr Giblin also made specific reference to permanent future work restrictions involving mobility and standing. These matters will be considered more fully in relation to the claim for loss of earning capacity.

Some of the reports of the radiological imaging undertaken of the plaintiff's injuries were available and were tendered as part of the evidence: Exhibit "A", Tabs 31-38. These ranged from plain x-rays to MRI images. These scans showed the presence of early osteoarthritic changes in the right ankle joint. They also showed that the plaintiff has significant problems of his left knee including meniscal tears, and an unstable flap. Degenerative changes were noted in the inter-tarsal joints, as well as in the tarso-metatarsal joints. A small calcaneal tear was also noted. Osteoarthritic changes were noted as being present in the apophyseal joints in the lumbar spine. A CT scan of the lumbar spine noted that the plaintiff had a developmentally narrowed lumbar spinal canal, with some stenosis. However, it was also noted that there was a broad based disc bulge at L4/5 and mild disc bulging at other levels, with facet joint arthropathy of the facet joints at L5/S1.

On 18 November 2009, the solicitor for the defendant arranged for the plaintiff to be examined by Dr Roger Pillemer, a consultant orthopaedic surgeon. Dr Pillemer's report was tendered as part of Exhibit "1". After reviewing the plaintiff's history, treatment and current complaints and setting out his findings on examination, Dr Pillemer confirmed that the plaintiff had experienced a very significant injury to his right foot and ankle region, and had related problems to the left knee and back discomfort. Dr Pillemer suggested the plaintiff needed to avoid activities that aggravated the symptoms, that he should try and keep his ankle elevated as often as possible, and to avoid prolonged standing or walking activities. Dr Pillemer identified ongoing employment restrictions and predicted deterioration in the right ankle associated with early osteoarthritis. He considered that the plaintiff's condition had stabilised.

Only one substantive report was tendered from the plaintiff's treating general practitioner, Dr King. That report was dated 12 March 2010. It referred to the commencement of the period of his care and review of the plaintiff as being 21 August 2006. Dr King referred to the requirement that the plaintiff remain on restricted or light work duties, which required that he be permitted to have his foot elevated when sitting, and that lifting restrictions should apply to weights of 15kgs in a single lift, and 7.5kgs in respect of repetitive lifts, and that there be no walking with such weights.

Dr King referred to the fact that osteoarthritis had already developed in the plaintiff's right ankle joint, leading to permanent disability and raising the prospect of an ankle fusion. His prognosis for the plaintiff was for no further improvement. There were no further reports from Dr King. It was a matter of some curiosity that Dr King, who held the advanced post graduate master's degree in Psychiatric Medicine, made no comment in his report on the plaintiff's post injury psychological status. I draw no inferences from that fact, one way or the other, because to do so would involve unwarranted speculation. It is possible that he was not asked to provide a commentary along those lines. Dr King prepared a further report that dealt with the cost of future treatment. It is not relevant to evaluate that report at this point of the analysis.

The foregoing review of the medical evidence reveals no substantive conflict amongst the expert opinions concerning the nature of the plaintiff's injuries, his treatment, his disabilities, and his future prognosis.

Disabilities that remain

The plaintiff has suffered significant physical consequences of the injury and these have continued to debilitate him.

The plaintiff continues to experience pain, discomfort, weakness and restricted movement of the right ankle. He has to wear orthotic inserts in his shoes. He experiences difficulty sleeping with his right ankle covered or restrained by covering bedclothes. He is unable to take his weight on the toes of his right foot as when reaching for high-up objects. He takes painkilling medication. The plaintiff continues to experience knife-like pain in his leg. The pain remains a constant trouble to him. He has a bone and cartilage deformity of the ankle, with unsightly, tethered and thickened scarring. The ankle has an external rotation deformity, which is more marked when walking. He experiences a clicking and grinding sensation in that ankle. He has an antalgic limping gait, by which he favours his right leg. He has reduced standing tolerance. He experiences a reduction in his ability to walk, run, kneel and squat. He has difficulties in walking on slopes, uneven ground, ladders and stairs. His right ankle swells on a daily basis. His right ankle has a tendency to give way. He has significantly reduced mobility and agility, and experiences swelling of the right ankle. He has difficulty using the footbrake when driving. He has muscle wasting of the right thigh and calf. There is also sensory loss in the distal distribution of the right sensory nerve. He experiences occasional cramping in the right foot. X-rays have revealed him to have disuse osteoporosis or osteopenia in the bones of the right ankle, and early onset of osteoarthritis of the right ankle. He has developed clicking or patello-femoral crepitus in both knees. He experiences back stiffness and mechanical lower back pain every few days due to altered gait. He also has lumbar disc bulging and lumbar facet joint arthropathy. His extended period of recuperation and reduced physical activity has led him to experience weight gain.

From a psychological perspective, the plaintiff has experienced a good deal of frustration and some depression as a result of the ongoing effects of his disabilities. Those problems have not been the subject of detailed medical consideration.

Employment effects

The plaintiff was absent from his employment between 30 June 2006 until 6 May 2008 whilst he underwent surgical treatment and related rehabilitation. On his return to work, he initially worked for 3 days per week for 4 hours per day until he was able to gradually increase his hours to full time work. The plaintiff returned to his full pre-injury hours of work on 26 June 2008. On his return to work, he was allocated less agile and lighter duties. When he returned to work his employer was understanding and allocated duties to him that reflected the fact that he had been injured. In this regard, the arrangement was that the plaintiff was able to call upon other employees for assistance with tasks that he could no longer carry out himself as a consequence of the effects of his injuries.

The plaintiff continued in those duties until 18 February 2011, which was the date of his resignation from that position. On 28 February 2011 he was due to start employment as a spare parts interpreter with another forklift spare parts company for a slightly higher salary. That employment opportunity arose when the plaintiff had recently been approached by the new prospective employer and was offered such employment. The plaintiff's understanding is that the new employer, who knows of his injury related problems, has nevertheless offered him employment with duties that are expected to avoid physical difficulty for the plaintiff with regard to his injured leg and his related disabilities.

Nevertheless, the plaintiff will continue to be restricted in his work related mobility and agility, as well as in his ability to perform unrestricted lifting, bending and carrying tasks. It is unlikely that these problems will abate during the remaining period of his working life. He will need to have an understanding employer if he is to continue earning an income, and to minimise any loss of earning capacity.

Mitigation

It is a statutory requirement that the plaintiff take reasonable steps to mitigate the effects of his injuries : s 136 of the MAC Act . The plaintiff has submitted himself to the treatment recommended to him by the medical practitioners who have attended upon his needs. He has been diligent in his pursuit of medical recovery from the effects of his injuries and he has returned to work at the earliest possible time. On my view of the evidence, it cannot be reasonably said that the plaintiff has failed to fulfil his obligation of seeking to mitigate the effects of his injury. The defendant has called no evidence on this issue, and makes no submission to the contrary.

C. LIABILITY FINDINGS

I now turn to the liability issues that arise for determination. These are whether the driver of the forklift truck was negligent as alleged, whether the injury to the plaintiff occurred during the use or operation of a motor vehicle, and whether there was contributory negligence on the part of the plaintiff as alleged.

Issue 1 - Whether the driver of the forklift truck was negligent

The plaintiff claimed that his injury was caused by fault that occurred during the operation and driving of the forklift, which was a motor vehicle: s 108(1)(a) of the MAC Act .

The negligence the plaintiff alleges against the defendant includes vicarious liability for the actions of the driver of the forklift, including allegations that the driver of the forklift failed to adequately control the load of the forklift, failed to observe the plaintiff was in a position of peril in the circumstances, failed to stop when he knew or ought to have known that the load had become unstable, failed to assess the items to be lifted by the forklift, failed to remove the tyne extensions before using the forklift for the unloading task, failed to lift the top pallet of the load first, rather than lifting the bottom pallet, and failed to fully engage the load before driving in the course of the unloading procedure.

There can be no question that in the circumstances of the injury to the plaintiff, the defendant owed him a duty of care: Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 per Gleeson CJ at [13]. In my view, the defendant was clearly in breach of the duty of care it owed to the plaintiff. There were breaches of that duty of care in several respects.

First , the defendant allocated Mr Barnes to forklift driving duties when he was not qualified or licensed to do so. Secondly , as the plaintiff was assigned to assist Mr Barnes, the defendant exposed the plaintiff to the very real risk of injury because the plaintiff had no prior warning of Mr Barnes' lack of licensed skill and qualification to drive forklift trucks. As a result, the plaintiff was wrongfully exposed to a risk of injury which could foreseeably arise from Mr Barnes' lack of licensed skill and qualification in the use of the forklift truck. Thirdly , by reasonably acceding to the direction of his employer to assist the forklift driver, Mr Barnes, the plaintiff was unable to assess or determine for himself whether he was being unreasonably exposed to the risk of injury. Fourthly , The manoeuvre carried out by Mr Barnes in reversing the forklift down the ramp, without first ensuring that the load was checked as being stable and secure on the tynes against the apron of the mast, was an inherently risk-laden exercise that exposed the plaintiff to foreseeable injury. Fifthly , there was inadequate supervision of the unloading procedure whilst using the forklift, in that no-one seems to have observed or considered the risk that whilst the forklift was being driven in reverse down the ramp at an angle to the ground with the load perched on the end of its tynes, its the unsecured load of cartons on the tynes might collapse and injure the plaintiff who was standing nearby. Sixthly , the plaintiff was not advised by his supervisor, or by some other responsible employee, that he should stand clear during the unloading manoeuvre. Seventhly , it appears to me that the laden forklift truck was being driven down the ramp too fast for its unsecured load on an inclined ramp. Steps should have been taken by the driver of the forklift to secure the load before the injury in question.

In my view each of these failures materially caused or contributed to the injury of the plaintiff, and therefore provided a materially contributing cause to the plaintiff's injuries.

From a causative perspective, of these confluent causes of the incident, the one that stands out as the pivotal causative event is the act of commencement and continuation of driving of the forklift in reverse, down a ramp at an angle to the ground, with its unsecured top heavy load perched towards the end of its tynes rather than at the more stable carrying position adjacent to the apron at the mast end of the tynes.

In my view, on a commonsense analysis, that action altered the inertial or gravitational force of the load, thus causing it to overbalance, collapse and fall onto the plaintiff. In my view, this was a fundamentally unsafe manoeuvre. The resultant injury to the plaintiff need not have occurred if commonsense was applied to beforehand secure the load, place it into a more stable position near the mast, to not drive the forklift until it was so secured, and even then, warn the plaintiff to stand clear.

For these reasons I find the defendant was in breach of the duty of care that it owed to the plaintiff. In my view, the failure to observe these precautions must be characterised as negligence on the part of the driver of the forklift truck. This is negligence for which the employer defendant is necessarily responsible.

In the circumstances where the injury to the plaintiff would not have occurred but for the described driving of the forklift truck, it is without question that the plaintiff's injuries were caused by the negligence of the defendant.

In arriving at these views I have taken into account the opinion of Mr David Dubois, a safety engineer and ergonomist. The 17 August 2010 report of Mr Dubois identifies available safety shortcomings in the defendant's system of work: report paragraph 120. Mr Dubois' report was prepared on behalf of the plaintiff and tendered by the defendant as part of Exhibit "1". The matters identified by Mr Dubois relate to the failure to provide a licensed driver, failure to ensure appropriate training, and failure to provide clear safety procedures in circumstances where the load on the forklift was potentially unstable so as to ensure that nearby persons stand well clear of the area in which the forklift is to operate. He also identified the need to ensure the load was properly secured, including by tying down. I accept those criticisms as valid from the point of view of industrial safety. I have also taken into account, the opinion of Mr Rech which was tendered by the plaintiff. Mr Rech pointed out, correctly in my view, that before the commencement of the driving of the forklift, the driver failed to properly assess the load, failed to remove the extension slippers, failed to lift the top pallet off first, and failed to lift the load correctly: Rech report, pp 2 - 3. All of these factors preceded the driving of the forklift truck. Although those matters were failures that amounted to breaches of the duty of care owed to the plaintiff, it was the driving of the laden forklift in those circumstances which I consider to be central to the relevant finding of negligence.

The real question that then remains is whether, in the circumstances, the plaintiff's injury was caused by fault on the part of the owner or driver of the forklift during its operation whilst being driven: s 3 of the MAC Act .

Issue 2 - Whether injury occurred during the use or operation of a motor vehicle

The defendant claims that the circumstances of the plaintiff's injury do not amount to " injury " as defined by s 3 of the MAC Act . As such, the defendant claims the plaintiff's proceedings should be dismissed for breach of Ch 7, Pt 6 of the Workplace Injury Management and Workers Compensation Act 1998. In the alternative, the defendant submitted that the plaintiff is not entitled to any compensation for non-economic loss because his claim does not satisfy the requirements of the provisions of Pt 3 of the MAC Act .

In this context, " injury " is relevantly defined by s 3 of the MAC Act as follows:

" 'injury' :

(a) means personal or bodily injury caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle if, and only if, the injury is a result of and is caused during:

(i) the driving of the vehicle, or

(ii) a collision, or action taken to avoid a collision, with the vehicle, or

(iii) the vehicle's running out of control, or

(iv) such use or operation by a defect in the vehicle, and

..."

Accordingly, to paraphrase that definition, in the context of this case, the plaintiff must demonstrate that the bodily injury he sustained in the incident was caused whilst the forklift in question was in operation, and was being driven, and there was, in a temporal sense, fault on the part of the owner or driver of the forklift: Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 658; Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 228 CLR 529, at [95]; Zotti v Australian Associated Motor Insurers Limited [2009] NSWCA 323.

It is common ground between the parties that the forklift truck in question was a motor vehicle. I have already found that the incident occurred when the forklift was being reversed down a ramp with a load and whilst under motive power. This must necessarily mean that the forklift was in operation, and that it was being driven at the relevant time. In fact it was being steered down the ramp under power.

I have already stated my finding that the cause for the load falling onto the plaintiff from the tynes of the forklift was that the load had not been secured or stabilised before the forklift was put in reverse motion and driven. In my view, the decision to drive the forklift in those circumstances, and to continue to drive it down the ramp, necessarily involved fault on the part of the driver, as I have already found to be the case. Given that the owner of the forklift was the employer of the driver, this necessarily means that the owner was vicariously liable for the driver's fault.

In the circumstances of the unloading operation, there was a moment when the driver of the forklift had completed the task of taking on the load of cartons. At that moment he then decided to drive the laden forklift in reverse down the ramp. It was that moment when the predominant action became one of driving, although it may have been part of a broader unloading operation. The two were inextricably intermingled. Nevertheless, the driver was driving the forklift with a load that was liable to collapse. His decision to do so, and his subsequent actions in carrying through that task, was the " predominant, immediate and proximate cause " of the plaintiff's injury. In my view that satisfies the temporal and causal requirements of the legislation: Allianz Australia Insurance Limited v GSF Australia Pty Ltd ; Nominal Defendant v GLG Australia Pty Ltd ; Zotti ; Inasmuch Community Inc v Bright & Anor [2006] NSWCA 99; JA & JM Bowden & Sons Pty Ltd v Doughty [2009] NSWCA 82.

In this regard, I am guided by the remarks of Beazley JA in Inasmuch , at [37]

"... Care must be taken especially when dealing with legislation of the type here, where particular facts may sit precariously on either side of the definition, in seeking to bring a case within an example or category referred to in another case ... A slight change in the facts could be the difference in a particular injury either falling within the definition or not. Each case must be considered having regard to the particular circumstances of the injury..."

In my view, on this analysis, the plaintiff has established the necessary elements, including the temporal connection between the operation and driving of the forklift and his injury, in order to prove that his injury constituted a relevant injury for the purposes of s 3 of the MAC Act. This means that the plaintiff's damages should be assessed according to the requirements of the MAC Act .

Issue 3 - Whether there was contributory negligence on the part of the plaintiff

The defendant relies upon a defence that alleges fault and contributory negligence on the part of the plaintiff. In this regard, the defendant alleges that the plaintiff failed to take care for his own safety, and that he failed to keep a proper lookout. The defendant further alleges that the plaintiff failed to ensure that the palletted boxes were properly and securely loaded onto the forklift, and that the plaintiff failed to inspect or adequately inspect the palletted boxes on the forklift before it was driven.

In my view, for the reasons that follow, the defendant has failed to discharge the onus it carried to prove such allegations, either at all, or so as to amount to contributory negligence on the plaintiff's part as alleged.

The allegations of failure of the plaintiff to keep a proper lookout and to take care for his own safety have to be considered in context. At the time he was injured, the plaintiff had fulfilled the immediate task that had been assigned to him. He had guided the forklift tynes into position inside the container to enable the forklift to engage the load. He then stepped clear of the reversing path of the forklift and he had no reasonable indication that he was at risk of injury from a load that was liable to fall on him.

There is no evidence that the plaintiff was at any time and in any way in the line of travel of the reversing forklift truck or its load, when he was injured. This can be safely assumed since he wasn't struck whilst the forklift was being driven in reverse. Further, there is no evidence from which it could be reasonably inferred that the plaintiff ought to have considered the load on the forklift tynes might become unstable and topple over towards him whilst the forklift was being driven down the ramp. In my view, the plaintiff was simply complying with the reasonable direction from his employer to assist with the unloading of the container, and in these circumstances, this is not a reasonable basis for a finding of contributory negligence on his part.

I consider this to be so particularly since the plaintiff had not been provided with any instruction or supervision in respect of the task that had been assigned to him. In those circumstances, if, contrary to my primary finding on this issue, these events are held to be construed as negligence on the part of the plaintiff, at the highest, this could only be a casual act carried out in the course of his employment, which does not merit a finding of contributory negligence on his part.

In my view, the remaining contentions of contributory negligence with regard to allegations of not securing the load and not inspecting it before the forklift was driven, should also be rejected. This is because the evidence discloses that it was not part of the duties assigned to the plaintiff that he should be responsible for such matters. He was simply told to assist the forklift driver by guiding the forklift tynes for the engagement of the load so it could be unloaded from the container. It was the responsibility of the driver of the forklift to refrain from moving the vehicle by motive power unless and until he was satisfied that the load was stable and secure, including by inspection, and that bystanders would not be injured as a result of his driving. These tasks were not the plaintiff's responsibility and he cannot be reasonably criticised in respect of such alleged failures.

I find that at the time of his injury, the plaintiff was merely a bystander who was standing clear of the path of travel of the reversing forklift truck and its load. He was not on notice that the load was in any way unsecured, or could become unstable, or was likely to topple whilst being moved. Those matters were not his responsibility. In these circumstances there can be no finding of contributory negligence on the part of the plaintiff.

The defendant's argument that the plaintiff would not have been injured if he had stood a few more feet away from where he was injured is an opportunistic one. It was based on hindsight considerations and not on the required prospective analysis of the events surrounding his injury: Vairy v Wyong Shire Council [2005] 223 CLR 442 per Hayne J at [126], p 461.

D. DAMAGES ASSESSMENT

In the paragraphs that follow, after recording my finding concerning the probable remaining lifespan of the plaintiff, I set out my assessment of the plaintiff's entitlement to damages in respect of each of the claimed heads of damage. Those claims comprise non-economic loss, past loss of earnings, future loss of earning capacity, past and future loss of employer funded superannuation contributions, future treatment expenses and past out-of-pocket expenses. Although the medical evidence supported a claim for 4 hours per week of future paid domestic assistance, counsel for the plaintiff indicated that a decision had been made not to particularise or to make a claim for such expenses. Accordingly, my assessment makes no allowance for a claim of that kind.

Life span

There is no evidence that suggests the plaintiff might have a statistically reduced probable life span. I have therefore selected the estimate of the plaintiff's remaining life span as that which is provided by the prospective life tables for a 45 year old male, namely 40 years. The 5 per cent multiplier for 40 years is 917.5.

Non-economic loss

There was significant disparity between the parties regarding their respective submissions concerning the appropriate amount to be awarded to the plaintiff in respect of non-economic loss. On behalf of the plaintiff, Mr Perry submitted the appropriate amount for this head of damage should be $225,000. In contrast, on behalf of the defendant, Mr Khandhar submitted that the appropriate award for non-economic loss should be in the amount of $100,000.

In determining the appropriate amount, it is relevant to briefly review the plaintiff's situation and circumstances. This requires that I consider in detail the matters that I have already set out at paragraphs [20] to [60] concerning the plaintiff's injuries, his treatment and his continuing disabilities. I do not propose to repeat those matters at this juncture, other than to reiterate the observation that the plaintiff has obviously suffered a very significant lower right leg injury, which has left him with pain, discomfort, swelling and restriction of movement of the right ankle, and to a lesser degree, to his right knee and to his back. I do not intend, by this brief summary, to be understood to be minimising the plaintiff's adverse circumstances by not again reciting those problems in greater detail at this point of my reasons.

In reviewing those matters I have had regard to two additional factors. The first involves an aspect of credit, and the second involves a matter of legal constraint.

As to the credit issue, I have formed the view that the plaintiff's account of his disabilities has been stoically understated. He has not sought to embellish upon his problems, and unusually for such serious injuries, he has not sought to dwell or expand upon those frustrations to make a case based upon psychological factors, although there was a hint of such matters in his evidence. In this regard, in his evidence, he has given unadorned and practical accounts of his problems, without invoking psychological mechanisms. Not that such stoicism should call for an additional component in assessing damages, but rather, instead, it serves to emphasise the need to be alert against the risk of under-compensating the plaintiff for his severe injury.

The issue of legal constraint concerns a peculiarity of the assessment regime required under the MAC Act . Notwithstanding that there is clear and cogent medical opinion evidence that would, according to conventional common law principles, have established a relevant and compensable causal nexus between the plaintiff's right lower limb injury and the onset of left knee problems due to compensatory adjustments in gait, by force of statute, problems concerning the plaintiff's left knee are not compensable in respect of non-economic loss in these proceedings: s 61 MAC Act ; Tchen v Nominal Defendant [2010] NSWCA 245 at [79]. That is because as the plaintiff's left knee problems have been determined by a MAS Assessor to be unrelated to the injury in question. I am therefore required to ignore that injury and its effects on the plaintiff, for the purposes of assessing the quantum of non-economic loss, and I have factored that constraint into account.

That said, in that regard, I do not consider that the level of assessed non-economic loss damages would have been materially different to the amount I have in fact assessed, if an allowance had been included in the damages award for non-economic loss for the plaintiff's left knee problems due to the extra burden placed on that knee because the plaintiff found that he had to favour his seriously injured right leg, this causing left knee problems. However, the compensatory left knee problems do have some relevance to assessing other heads of damage that are separate from non-economic loss: Tchen at [79].

In weighing all of the relevant considerations that I have identified , I consider the defendant's submission for this head of damage to be well below the bounds of a sound discretionary judgment and I decline to accept it. In contrast, I accept as appropriate, the submission made on behalf of the plaintiff with respect to the amount to be awarded to the plaintiff for non-economic loss for his pain, suffering, and the loss of amenity of life that is encompassed by the concept of non-economic loss. I therefore assess the plaintiff's entitlement to damages for non-economic loss for pain, suffering, and loss of the amenity of life in the sum of $225,000 .

Past loss of earnings

The plaintiff makes a claim for past economic loss in the total sum of $68,576. That claim comprises an aggregate of four periods within the overall period between 1 July 2006 and 23 February 2011. In contrast, the defendant submits that the plaintiff's claim for past loss of earnings should be assessed in the amount of $62,400 at the rate of $650 per week net, from the date of injury until 6 May 2008. The difference between these two amounts is $6176.

The medical and factual evidence discloses that the plaintiff was totally absent from his work from the day of his injury on 29 June 2006 until 6 May 2008. Thereafter he gradually returned to full-time work.

Although there is a $6176 difference between the respective submissions of the parties concerning past loss of earnings, and that difference is relatively small, it seems that difference is based on which analysis is adopted with regard to comparable net earnings. On the evidence tendered on this topic, it is difficult to discern whether the suggested comparable earnings figures relied upon by the plaintiff, and which account for that difference, were truly comparable. In the face of that difficulty I consider that it is safer to accede to the defendant's submission that identifies the conservative option as to the quantification of past loss of earnings. I therefore assess the plaintiff's damages for past loss of earnings in the sum of $62,400 .

Future loss of earning capacity

The plaintiff makes a claim for future loss of earning capacity in the submitted sum of $159,033. In contrast, the defendant has submitted that any award of damages for future loss of earning capacity should be in the form of an economic buffer or cushion, in the rounded sum of $100,000. The parties are in agreement that these sums are suggestions for a range, but do not constrain an assessment of this head of damage.

The reasoning behind the plaintiff's submission involves three stages of calculation. The first stage assumes a net loss of earning capacity of $20 per week for an estimated five years from the present time, and discounted by 10 per cent for vicissitudes, which yields the sum of $4167 net. The second stage assumes that after those five years have passed, it is likely that the plaintiff will experience a six-month period of total incapacity whilst undergoing and recuperating from an anticipated right ankle arthrodesis procedure. The claim for that period is $700 per week net over 26 weeks but deferred on the 5 per cent tables for 5 years (x 0.784) which yields an amount $14,269 net. The third stage assumes that thereafter, there is a continuing loss of earning capacity of $350 over the remaining 17 years of the plaintiff's working life to age 65 (x 602.8) and deferred for 5 years (x 0.784), and allowing a discount of 15 per cent for possible adverse vicissitudes, to yield $140,597 net. The total of these 3 staged calculations is in the amount of $159,033. I will return to my analysis of the assumptions underlying that submission after reviewing the defendant's submissions, the medical evidence and the evidence of the plaintiff.

The rationale behind the submission made on behalf of the defendant is that the plaintiff is in employment that is comparable to his pre-injury employment without discernable ongoing loss, and he is likely to continue in that employment over the remainder of his working life. In those circumstances, it was argued that a buffer of the order of $100,000 represents proper compensation for the plaintiff's future loss of earning capacity. I will return to consider that submission after reviewing the medical evidence, as I consider that in order to obtain a proper insight into the plaintiff's claim for loss of earning capacity, it is relevant to examine the medical evidence on this issue.

The plaintiff's general practitioner, Dr King has provided a very brief report dated 12 March 2010. That report provided a short overview of the treatment that the plaintiff has received since 21 August 2006. Dr King focused upon the period following the plaintiff's return to work and commented that the plaintiff should be subject to sitting and lifting restrictions, these being sitting with his foot elevated and lifting no more than 15kgs on a single lift, and restricted to no more than 7.5kgs with repetitive lifting, noting that the plaintiff was not to walk with such weights.

The reports from the plaintiff's treating orthopaedic surgeons, Dr Fox and Dr Newman, offer only limited insight into recommended work restrictions because their reports are respectively dated 19 May 2008 and 31 August 2008, which were times when the plaintiff was still undergoing active treatment, and his medical condition had not yet stabilised. What does come from my overall reading of the more discursive reports of Dr Fox, is that my own impression of the plaintiff being a stoic understater of his physical limitations, has been confirmed.

In my view the first relevant insight from a specialist orthopaedic surgeon comes from the first report of Dr John Harrison, which is dated 31 July 2008. At that time, Dr Harrison stated his opinion as follows:

"He is not fit for his former normal work activities, which involved a fair bit of time on his feet, rather than simply sitting at a desk and processing a search for spare parts and obtaining them, as was his role as a spare parts interpreter with his firm.

He has got back to light restricted duties again and his loss of capacity for work is substantially as a direct consequence of the effects of that injury on 29 June 2006.

I would agree that he is only appropriately fit for light restricted duties involving a substantial part of the time in sedentary work where he can sit, rather than having to stand and frequently or get up and down frequently from a desk or a chair to attend to customers and do other tasks.

He will remain permanently incapacitated for the normal, active role and position that he filled before, based on this assessment here today and that incapacity is a direct result of the accident on 29 June 2006 and the effects that it has had on him."

When Dr Harrison saw the plaintiff again on 18 January 2010, his assessment was essentially unchanged, and was expressed as follows:

"Since I last saw him, there has been deterioration in range of active movement of the right foot at the ankle and yet, he has resumed work and has coped back at work on modified duties in a satisfactory manner.

His on-going problems have included diminished, active movement in the right foot at the ankle, a persisting tendency to limp favouring the right and sometimes the left leg and residual pain patterns at and around both knees left worse than right with pain and restricted mobility in the right foot and ankle continuing to trouble him. He has shown an ability to get back to modified the duties again with which he is coping, but he does not have the capacity or mobility to safely and confidently expect or anticipate that he will get back to his former, normal work activities as a spare parts interpreter with his company, based on this further assessment."

It is also pertinent to note that at the time Dr Harrison gave that view, it was in the context of his opinion that there was likely to be some further deterioration through arthritic change in the right ankle at the time. Significantly, Dr Harrison's views did not include any consideration of the plaintiff's back or knee problems, which are also of relevance to the issue of loss of earning capacity. When Dr Harrison saw the plaintiff again on 9 December 2010, his opinion concerning the plaintiff's work restrictions was in the following terms:

"He is fit enough for restricted duties but certainly not fit and he is unlikely to be fit again in light of his on-going impairments to perform his former and normal previous work activities on other than modified duties as a spare parts interpreter with his company and they seem to have adapted to that changed role for him and had provided suitable, ongoing employment."

When Dr Pillemer assessed the plaintiff on behalf of the defendant's insurer on 18 November 2009, his commentary on the plaintiff's fitness for employment was as follows:

"Mr Chaseling is obviously a very well motivated gentlemen and back doing his normal hours but on restricted duties which in my opinion are very appropriate at this stage. He will need to continue with his restrictions in the future.

It is predictable that Mr Chaseling is going to have significant ongoing problems of his right foot and ankle region in the long term and, as suggested above, deterioration in his condition can be anticipated. This is likely to be on the basis of the development of an early osteoarthritis in the ankle with increasing restriction on movement and increasing discomfort."

Dr Michael Couch, a consultant occupational physician, examined the plaintiff on the 18 February 2010. He gave a very detailed and practical consideration of the work restrictions that applied to the plaintiff's situation. His opinion on the plaintiff's work restrictions was expressed in the following terms:

"I agree with Dr Harrison's previous statement, that Mr Chaseling is not fully fit for [h]is pre-injury duties. As an occupational physician, I recommend the following restrictions:

Not to lift of (sic for or) carry more than 15 kg occasionally or 10 kg more repetitively

Not to lift below the knee height (because of difficulty in ability to squat fully)

No heavy pushing or pulling, for example heavy or awkward trolleys or exerting strong force on tools or materials

Whenever possible, you should work seated, preferably with right foot elevated to reduce pain and swelling

When working seated he needs to have a good ergonomic workstation

Not to walk more than 300 m without a rest break or more than 3000 m per working day

Avoid more than occasional use of up to one flight of stair (for example to access workplace) with no carrying of loads up and down stairs

Not to use at all of ladders/stepladders

Not to squat or crouch fully

Avoid negotiating steep slopes or rough ground

No running

If driving in the course of his duties, not to drive more than 45 minutes without a rest break out of the vehicle, or more than three hours per working shift

Needs to be able to travel with little walking between home and workplace - ideally you should be able to drive within 100 m of the workplace.

Note that these restrictions are not consistent with the full range of duties of any of Mr Chaseling's previous jobs. He is capable of performing the sedentary portion of his job (mainly sitting at a computer/on the phone/working as a spare parts interpreter taking orders etc). He would be quite limited doing physical store duties and is not suited for more than occasional picking and packing of orders."

When Dr Giblin assessed the plaintiff on 23 March 2009, he expressed the following opinion on work restrictions:

"I would assess him as being permanently unfit to work using his right leg for periods of walking, standing, for more than about 10 minutes, and permanently unfit to use his right leg in a repetitious impact fashion, stair or ladder climbing or working at heights or doing labouring duties. These restrictions would apply indefinitely to his domestic and recreational activities."

The plaintiff's own evidence of his awareness of the need for him to observe work restrictions was somewhat limited. He stated that when he returned to his work after recovering from the cumulative effects of his 6 injury related surgical procedures, he found it hard at work. He said that he had concerns over his safety, and experienced pain in his right leg most of the time: T. 30.5 - T. 30.25. That was at a time when he was still on crutches. He noted that following all of the surgeries he has had performed on his right leg, the pain still remains and has not receded: T. 32.40.

On his return to work with the defendant, the plaintiff was no longer required to do ladder work. He was not required to do any heavy lifting, and he kept his walking around the premises to a minimum whereas beforehand these activities formed part of his duties. The plaintiff's post-injury work with the defendant involved him doing more telephone work, having customer contact over the counter, and taking on some extra duties such as banking. It was also agreed that if his work as spare parts interpreter required him to have access to higher shelving, he would be assisted by a storeman in order to do that aspect of the work. The plaintiff's post injury work with the defendant involved him carrying out deskwork for about 60 per cent of the time, with some residual walking. That was a regime that would be expected of an employer with legal obligations towards an employee injured in its workplace.

The evidence disclosed that just before the hearing, the plaintiff exercised his right to change his place of work in the hope of securing better conditions for himself. The plaintiff gave evidence that he is currently aware of the need to avoid physical work that would adversely affect his injured condition. He said that he has discussed the matter with his new employer: T. 37.5 - T. 37.46. It is his opinion that his new employer, according to him, is understanding of such matters: T. 38.1. That may well be the case for the moment and there is no evidence to the contrary.

However, in reviewing the plaintiff's own evidence on work capacity issues, I consider that it is overly optimistic of him to assume that over the remainder of his working life, the restricted work duties that will apparently be available in his new job, or an equivalent position, will remain open to him.

Having regard to the specific constraints on the plaintiff's future working activities, as has been canvassed by the medical experts whose reports were tendered, and which are unchallenged, I consider that the plaintiff's own evidence on his future work difficulties was overly simplistic. I consider this to have been in keeping with my own assessment of him as a stoic under-stater of his problems. In this context, I consider that the plaintiff has most probably understated the difficulties ahead of him, and was lacking a full insight, probably because of misplaced optimism. I take that view because the plaintiff's evidence on this subject was relatively brief and sparse, and did not specifically address the concerns over work duties that had been expressed by the medical experts who had assessed him, particularly Dr Couch, Dr Harrison and Dr Giblin.

In coming to that view, I do not wish to be understood as being critical of counsel for the plaintiff, who has probably assumed that the unchallenged nature and content of the medical opinions on work restrictions, allowed him some scope for economy of questioning on this issue during the evidence in chief. The light touch of cross-examination on that evidence, from the defendant's perspective, was also understandable. However, I must assess the evidence on this issue as a whole.

The plaintiff has stated that he understands that his new employment will be for a salary of $47,500 per annum gross, plus the statutory superannuation entitlements. That sum is $1500 per annum more than his last salary in the employment of the defendant. Assuming no allowable tax deductions apply, a salary of $47,500 per annum gross is, according to the currently applicable tax scales, the equivalent of $750 per week net after taking into account the applicable tax rates, and the 1.5 per cent Medicare levy. I consider this sum of $750 per week net to be the relevant background yardstick for assessing the plaintiff's claim for future loss of earning capacity. It is in this context, and against the background of the evidence I have reviewed, that the claim for damages for future loss of earning capacity has to be assessed.

The plaintiff's employment circumstances, but for his injury, would most probably have been that he would have stayed in regular employment with the defendant, or in a similar position, but with the retained option of exercising his right to seek portability or transfer of his employment to other jobs if he chose to do so. This could occur for salary reasons, better working conditions, or some other reason personal to him.

The change in the plaintiff's circumstances brought about by the injury was that not only did he have an extended period of absence from his employment, but on his return to work it became clear, based upon unchallenged medical opinion, that he was no longer suited to a range of pre-injury jobs he had been hitherto able to pursue and carry out without difficulty. It was in that context that he has sought alternative employment with an apparently understanding employer. One relevant aspect of that change in the plaintiff's employment has been that he has demonstrated a higher earning capacity than for that which he was deriving earnings whilst employed by the defendant. However, just because he secured that higher paid employment after his injury does not mean that the plaintiff does not continue to suffer a loss of earning capacity.

The principles by which a claim for loss of earning capacity should be assessed are well settled and can be shortly summarised. If the plaintiff can demonstrate he has suffered an impairment to his earning capacity, insofar as an award of damages can achieve this, he is entitled to an award that places him in the same position he would have been in if he had not been injured: Haines v Bendall [1991] HCA 15; (1991) 172 CLR 60. Where there is only limited information available to identify a precise monetary basis for projecting a future loss of earning capacity, an assessment of that loss of capacity is nevertheless required, including, where appropriate, the award of a buffer sum: State of NSW v Moss [2000] NSWCA 133. In making such an assessment, it is necessary for a court to be satisfied that the claimed loss of capacity was likely to result in an actual financial loss: Graham v Baker [1961] HCA 48; (1961) 106 CLR 340; Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1.

In this case it is clear on the plaintiff's own evidence, and on the medical evidence, that his previously unrestricted ability to work has been adversely affected so as to impair his future earning capacity. So much is plain from his description of his continuing work restrictions and the time line that will lead him to have extensive time off work for an operation to arthrodese his right ankle. Even after he has that operation, he will still be subject to the medically assessed work restrictions identified by Dr Couch. His impairments will remain permanent, and I consider these circumstances justify an assessment of an economic loss buffer in this case.

On an analysis of the medical evidence, I have already identified, I consider that the 3 stepped buffer approach to the assessment of the plaintiff's claim for damages for future loss of earning capacity, as was submitted on behalf of the plaintiff is the preferred approach. In my view, given the specificity of the medical evidence, which identifies different periods of relevance to the issue of the plaintiff's future earning capacity, I consider this approach to be the more preferable to the single spanned buffer approach advocated by the defendant's submissions.

In the first step, in practical terms, it is apparent what must be valued is the risk to the plaintiff's earning capacity between the present time and the ensuing 2 years, which is the time I consider it more probable than not he will have his right ankle arthrodesed. In those 2 years, as was predicted by Dr Giblin and the other medical experts, the plaintiff will probably continue to experience a timeline of deteriorating symptoms as has already occurred between the time Dr Giblin and Dr Harrison first saw him, and the times they re-examined him for the purpose of providing their revised reports. In my view, the deterioration on that timeline noted by Dr Harrison, provides a proper basis for reasonably inferring that the deterioration will continue to the time of operative intervention.

Accordingly, in my view, during that initial 2 years, it cannot be reasonably assumed that the plaintiff will not suffer a continuing earning capacity. On the contrary, I consider that with his ongoing problems in his right ankle, and the effect that has on his gait and general mobility, it must be inferred that he is very likely to have difficulties with his new work. For a start, Dr Couch has identified that the plaintiff should not be driving for more than 45 minutes without a rest break, yet the plaintiff's new work requires that he now drive longer distances from his home to get to and from work, as distinct from the former 10 minute journey between home and his former work with the defendant.

Then there is the significant number and the extent of employment restrictions outlined in the report of Dr Couch, which I have listed at paragraph [114] of my reasons. In view of those matters I do not think it can be reasonably assumed in favour of the defendant that the plaintiff will not have time off from his work for sick or injury leave due to these problems in the ensuing 2 years before he has the probable arthrodesis. Further, in view of what I have found to have been the plaintiff's misplaced over-optimism about his condition, I do not consider it reasonable, without having heard from the new employer, that the plaintiff's special employment circumstances, as explained by him, would continue seamlessly and without interruption until he has his arthrodesis. Further, in the circumstances, the evidence concerning the plaintiff's new employment does not necessarily suggest that employment will be secure in the short, medium or long term. I consider this period of 2 years must be cushioned with a significant economic buffer for the identified loss of earning capacity in that period, particularly since the flexibility of the plaintiff's new employment circumstances remain untested.

In respect of that first stage I consider that the appropriate buffer should be in the sum of $10,000. I consider that the reasonableness of that component of the buffer can be tested as follows. If the plaintiff had 2 full years of uninterrupted earnings at $750 per week net, assuming no increments, he would be likely to earn income of the order of $78,000 net in those 2 years. When analysed for comparative purposes, a buffer of $10,000 is the equivalent of about 15 per cent of the plaintiff's weekly earnings of $750 per week, or $115 per week, projected at 5 per cent over 2 years (x 99.4), less 15 per cent for potentially adverse vicissitudes. Whilst the buffer has not been calculated in that way, I consider that the testing of it in this way confirms it as a reasonable amount to award to cushion the plaintiff for impaired earning capacity for the ensuing 2 years.

The nature of the second stage of the buffer indicates that it can be identified with a greater degree of precision, and is amenable to a more definite calculation. The medical evidence disclosed that barring complications, which the plaintiff has already experienced in the course of his previous 6 episodes of surgery, and for which he has had extended time out of the workforce for nearly 2 years, he will need 6 months off work to recuperate from the proposed arthrodesis. Given the nature of the surgery and the fact that he has already had complications from the prior surgical treatment, and given he is considerably overweight and this has caused previous problems with post-operative mobility according to the medical reports, I consider that an extended period of 12 months off work rather than 6 months would be an appropriate buffer to safeguard the plaintiff against loss of earning capacity in that period.

In this instance, this is a potential vicissitude that operates against the defendant. The calculation of $750 per week loss of income for 1 year, is the equivalent of $38,000. After allowing for a discount of 15 per cent for positive vicissitudes in favour of the defendant on this aspect, this yields the equivalent of $32,000. I consider that in his first 2 years in a new job, it would be unlikely that the plaintiff would be able to accumulate an entitlement to 12, or even 6 months, of sick leave to cover such an extended absence. As a result, I consider that this component of loss of earning capacity is bound to arise. Further, such a long absence from work due to incapacity would ordinarily give rise to a concern that his position would remain open for him for such a long period. Accordingly, I consider that the second component of the buffer should be of the order of $32,000.

The third component of a buffer for future loss of earning capacity in this case should reflect the fact of the plaintiff's arthrodesed ankle and his altered gait. There is no suggestion in the medical evidence that the plaintiff's knee problems and back problems would abate after recuperation from the arthrodesis procedure. Neither is there any suggestion in the medical evidence that the work restrictions identified by Dr Couch would no longer apply. I consider that due recognition must be given to the fact that the plaintiff, in his 49 th year, after recuperating from his arthrodesis, and being still subject to the significant work restrictions that have been identified, will be at a very significant disadvantage as a competitor on the open labour market, as well as being difficult to place in restricted employment which caters for the identified restricted duties.

In those circumstances, I consider that a buffer of the order of $160,000 would be appropriate for the third component. I have tested the reasonableness of that amount by recognising it to be the equivalent of 50 per cent of $750 per week, namely $375 per week, projected at 5 per cent over 16 years to age 65 (x 579.5) and discounted by 15 per cent for potentially adverse vicissitudes, and deferred for 3 years (x 0.864) to yield $159,594, rounded to $160,000. I think this is appropriate because in that final period of the plaintiff's earning years, the identified restrictions, including the effects of his ankle arthrodesis, will obviously interfere with his movements and with his ability to work. He will still be restricted, and he will obviously be difficult to place in the workforce.

When these 3 buffer components are combined, they amount to the total sum of $202,000. Recognising that the identification of an appropriate buffer is not intended as a precise calculation, although the testing of it can appear to be so, I propose to round down the identified buffer down to the sum of $195,000. I consider this rounded down sum is an appropriate buffer to cushion the plaintiff against all of the future adverse impacts his injury related disabilities are likely to have upon him, in interfering with him exercising what would otherwise have been an unrestricted capacity to pursue his earning capacity in the future. I therefore assess the value of the plaintiff's claim for future loss of earning capacity in the sum of $195,000 .

Past loss of superannuation

The convention is for the value of the loss of past employer funded superannuation benefits to be assessed at 11 per cent of the amount assessed for past loss of earning capacity. Accordingly, applying that approach, 11 per cent of past loss of earnings assessed at $62,400 is $6864. I therefore assess damages for the value of the plaintiff's loss of employer funded superannuation benefits to be in the sum of $6864 .

Future loss of superannuation

Consistent with the approach taken with respect to the assessment of past loss of employer funded superannuation, applying the same convention to the calculation of future superannuation losses, 11 per cent of $195,000 the assessed loss of future earning capacity yields an amount of $21,450. This sum has already been discounted for vicissitudes. I therefore assess the plaintiff's damages for the value of his future superannuation losses in the amount of $21,450 .

Future out-of-pocket expenses

The plaintiff makes a claim for future treatment expenses in the estimated sum of $51,809. That sum comprises allowances for the deferred cost of an ankle arthrodesis, general practitioner visits, attendance on specialists, medication, physiotherapy, hydrotherapy and gymnasium costs. The calculations put forward on behalf of the plaintiff have not included an allowance for the cost of recommended special footwear.

The defendant submitted that an allowance of a buffer sum for future treatment would be appropriate, in the amount of $30,000. That sum was submitted to be adequate for the allowance of the cost of future surgery, rehabilitation, medication, but specifically excluded lifetime physiotherapy and allied costs.

A reconciliation of these differing submissions requires an examination of the evidence on this topic. Before embarking upon that review, in this case it is relevant to note that until now, the plaintiff's treatment costs have already amounted to $141,565. Whilst that sum is not necessarily an indicator of the future cost of treatments, it is indicative of the plaintiff's willingness to pursue treatment in an attempt to ameliorate the effects of his injury. It is also a relevant background indicator as the preponderance of the medical evidence suggesting that a significant allowance still needs to be made for anticipated future treatment costs in any damages award.

Whilst it is difficult to be prescriptive about the precise cost of the plaintiff's future treatment needs on the evidence adduced, it is nevertheless necessary to achieve a reasoned assessment. In making my assessment of the likely future treatment expenses, I therefore propose to address each of the elements that have been identified within the submissions.

Arthrodesis

The specialist reports of Dr Fox, Dr Newman, Dr Giblin, Dr Harrison, Dr Couch and Dr Pillemer, all refer to the prospect of the plaintiff requiring an arthrodesis of his right ankle joint. The opinions vary as to the likely timing for that procedure to be carried out.

Dr King noted the presence of right ankle joint osteoarthritis and accordingly foreshadowed an ankle fusion procedure. Dr Harrison did not identify a precise time when such a procedure would be required, but indicated the plaintiff may well reach a point within 2 years of his December 2010 report where ankle arthrodesis would be considered. He identified the cost to be around $7500. In contrast to that costing, Dr Giblin indicated the all-up costs for an arthrodesis procedure, including ancillary costs would be of the order of $15,000, barring complications. Dr Giblin had initially referred to non-surgical autofusion in his 2008 report, but subsequently changed his view to that of the plaintiff needing surgical intervention rather than letting fusion occur over the passage of time. Dr Couch deferred to orthopaedic opinion on the arthrodesis question, but in doing so, noted the presence of existing quite severe pathology, which would become increasingly painful osteoarthritis. In my view, that is a matter to be weighed in favour of an early operation for arthrodesis. Dr Newman was of the view that the plaintiff would eventually need an ankle arthrodesis in time, and was not more specific about when this may be required. Dr Pillemer considered that surgical treatment might need to be considered at a later stage, the context being his opinion on 18 November 2009.

The preponderance of the medical evidence is that the plaintiff will require an arthrodesis of his right ankle. I consider it to be more probable than not that this will occur somewhere along the timeline, as was suggested by Dr Giblin, but probably within 2 years if the plaintiff is to maximise the retention of his residual earning capacity. Although the plaintiff is in his late middle age, he has a significant period of remaining working life ahead of him, and the procedure will assist in alleviating his ankle pain. On that basis I consider that procedure should be the subject of an allowance in a damages assessment, especially since the assumption must be that he will take reasonable steps to mitigate the adverse effects of his condition. I consider the 23 March 2009 opinion of Dr Giblin on future surgical treatment to be significant. It was expressed in the following terms:

"Future treatment needs will be both medical and surgical in nature. The timelines will be ongoing, and the costs extensive.

...

His surgery will include, but not be limited to ankle arthrodesis ..."

[Emphasis added]

I consider the terms of the cited opinion to justify adopting the higher range figure of $15,000 as identified by Dr Giblin in preference to the lesser estimate identified by Dr Harrison.

In 2008 Dr Giblin thought autofusion would occur within 5 - 6 years. This equates to the time range 2013 to 2014. Dr Giblin's 2009 opinion did not offer a revised time range, but I infer from his evidence, that his change of opinion from allowing auto-fusion to occur to supporting an arthrodesis, involved a shortened timeline. In this regard, Dr Harrison's report dated 18 January 2010 noted that the plaintiff's range of active movement in the right foot and ankle had deteriorated: page 4. Whilst it may appear to a degree arbitrary, I consider the costing for the recommended arthrodesis procedure should be calculated as being 5 years from Dr Giblin's 2008 report, namely 2 years hence. I therefore propose to defer Dr Giblin's estimated cost of $15,000 by 2 years (x 0.210) to yield an amount of $11,850.

General practitioner

Dr Harrison supported the need for ongoing medical reviews but did not identify the likely intervals for these to take place. Dr Giblin identified added risks to the plaintiff's general health and overall medical status and outlined a range of medical conditions that needed to be considered as a result of the plaintiff's ankle condition. In view of that evidence I consider that it would be reasonable to allow the plaintiff the claimed cost of 4 general practitioner consultations per year as suggested by Dr King: Exhibit "G". He not only has ankle pain, right knee pain and left knee pain but he has back pain and difficulty managing his weight because of an inability to remain active due to his physical limitations. In those circumstances, 4 visits per annum seem reasonable to assist in monitoring and managing these problems. I consider $64 per visit as stated by Dr King to be a reasonable estimate. This is the equivalent of $256 per annum or $4.92 per week. The projection of $4.92 per week at 5 per cent over 40 years (x 917.5) yields $4514.

Specialist attendances

Consistent with the allowance for access to general practitioner consultations, it seems reasonable that the plaintiff should also have access to specialist consultations for reviews and advice as his orthopaedic problems involve permanent restrictions and disability. Dr King refers to the possible need for more frequent reviews by an orthopaedic surgeon. It is important to have these problems monitored by the appropriate specialist. Whilst Dr King has not referred to other specialists, given Dr Giblin's opinion on the other health risks the plaintiff may face, I do not ignore the possibility that a greater range of consultations than that claimed by the plaintiff may prove to be required. In view of that analysis, in the absence of precise evidence as to the actual cost of a specialist consultation, I consider the claimed allowance of 1 consultation per annum at $250, or $4.80 per week to be a reasonable conservative estimate. The projection of $4.80 per week at 5 per cent over 40 years (x 917.5) yields $4404.

Medication

Dr Harrison was of the view that an allowance of between $18 and $20 per month should be made for the plaintiff's future need for intermittent analgesic medication costs. Dr King identified $17.85 per month just for paracetamol without allowance for anti-inflammatories. Dr Couch supported the need for analgesic medication as a necessity for the plaintiff. Given the complaints of ankle, knee and back pain I consider it reasonable that an allowance be made for future recurring medication costs. I consider a rounded figure of $20 per month to be reasonable. An allowance of $20 per month is the equivalent of $4.62 per week. The projection of $4.62 per week at 5 per cent over 40 years (x 917.5) yields $4328.

Special shoes

Dr Harrison stated that the plaintiff might benefit from the use of rocker-bottom soled ankle support shoes specially fashioned for the right foot as an interim measure. He indicated that after an ankle arthrodesis modified footwear would be required, including right-sided orthotics. Other evidence identified the need for a special lace up boot. The podiatry and other evidence did not identify the likely cost or the likely recurring incidence of such expenditure. In the circumstances, on the evidence, I consider that some specific allowance should be made for this identified item of expenditure. Doing the best I can to be fair to both parties, I consider that an allowance of $500 per year should be allowed as a reasonable conservative estimate. This is the equivalent of $9.61 per week. The projection of $9.61 per week at 5 per cent over 40 years (x 917.5) yields $8817.17.

Hydrotherapy, physiotherapy, gymnasium expenses

The plaintiff's treating physiotherapist, Mr Vidaic, expressed the view that the plaintiff may need continued physiotherapy, hydrotherapy and exercise programming over his remaining working life. He expressed that view as a combination of such therapies, depending upon pain level and the recommendations of the general practitioner. Dr Newman noted that the plaintiff struggles to exercise away from the workplace, which in my view is a compelling argument for the provision of a structured programme of exercise to assist him to overcome the difficulty of managing his weight. In my view the assessment of the cost of such expenses should not be limited to the period of the plaintiff's working life in view of Dr Giblin's opinion of the ongoing timeline of the effects of the plaintiff's injury.

In 2008 Dr Harrison initially doubted that physiotherapy would be of meaningful value to the plaintiff. He thought some short-term allowance ought to be made for hydrotherapy for water-based exercises as part of his rehabilitation. He was only addressing the ankle issues, and did not include the back problem or the knee problems. However, in 2010, Dr Harrison reported that the plaintiff was feeling the benefit of weekly physiotherapy to his right ankle and left knee to moderate his experience of pain.

I consider this evidence to be a compelling ground for allowing for the combined incidence of such treatment. I do not consider that the defendant's submission seeking disallowance of this component of the claim to be reasonably made in view of the seriousness of the plaintiff's ongoing problems, particularly his limited mobility and the deleterious effect this has upon his ability to exercise and manage his weight. I also have to consider the plaintiff's back and knee problems. Whilst the MAS certificate specifically excludes the plaintiff's left knee problems from consideration of an assessment of percentage impairment and non-economic loss damages, no such constraints apply to the knock-on effects of the ankle injury, which I find includes the compensatory gait related problems of the left knee. Although the physiotherapy costs have been identified at $50 per session in Exhibit "G", Exhibit "H" identifies the cost at $61.25. I therefore consider the plaintiff's estimate of $60 per fortnight for this head of damage to be reasonable especially since it is intended to cover, not just physiotherapy, but also hydrotherapy and occasional gymnasium access. This is the equivalent of $30 per week. The projection of $30 per week at 5 per cent over 40 years (x 917.5) yields $27,525.

Summary of amounts assessed for future treatment

The amounts that I have identified for future treatment in the immediately preceding paragraphs total $61,438. Recognising that precision is not achievable in estimating and assessing such likely future expenses, it is appropriate that this total sum be rounded down to acknowledge and reflect the uncertainties involved in the assessment process. Discounting for the possible impact of adverse vicissitudes is not appropriate as the actuarial tables already take mortality into account. However, I think it is appropriate to round down the calculation in recognition of the overall inherent imprecision of the process. I therefore assess the plaintiff's damages for future treatment expenses in the sum of $60,000.

Past out-of-pocket expenses

The parties are agreed that the out-of-pocket expenses the plaintiff has incurred to date are in the sum of $141,561. I therefore assess the plaintiff's out-of-pocket expenses in the sum of $141,561 .

Summary of damages assessment

My assessment of the Plaintiff's damages is summarised as follows:

(a) Non economic loss	$225,000
(b) Past loss of earnings	$62,400
(c) Future loss of earning capacity	$195,000
(d) Past loss of superannuation benefits	$6,864
(e) Future loss of superannuation benefits	$21,450
(f) Future out-of-pocket expenses	$60,000
(g) Past out-of-pocket expenses	$141,561
Total	= $712,275

E. DISPOSITION & ORDERS

It therefore remains to consider questions of costs and consequential orders that reflect my findings.

Disposition

I have found that within the framework of the MAC Act , the plaintiff has succeeded in establishing the defendant to be liable for his injuries with the damages assessed in the amount of $712,275. As a result, unless the plaintiff can show that he is otherwise entitled, it follows that the defendant should bear the plaintiff's costs of the proceedings on the ordinary basis, unless it can be shown that he is otherwise entitled.

Orders

I make the following orders:

(1) Verdict and judgment for the plaintiff against the defendant in the sum of $712,275;

(2) The defendant is to pay the plaintiff's costs on the ordinary basis, unless otherwise ordered;

(3) The exhibits may be returned;

(4) Liberty to apply on 7 days notice if further orders are required.

**********

Decision last updated: 21 April 2011

Medium Neutral Citation:	Chaseling v TVH Australasia Pty Ltd [2011] NSWDC 24
Hearing dates:	21, 22 & 23 February 2011
Decision date:	15 April 2011
Before:	Levy SC DCJ
Decision:	1.Verdict and judgment for the plaintiff in the sum of $712,275; 2.The defendant is to pay the plaintiff's costs on the ordinary basis unless otherwise ordered; 3.The exhibits may be returned; 4.Liberty to apply on 7 days notice if further orders are required. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	TORTS - negligence - motor vehicles -- palletted load of boxes dislodged from tynes of forklift truck reversing down a portable ramp whilst unloading a shipping container - injury to plaintiff standing nearby - load dislodged and fell on plaintiff - whether due to negligence of driver - whether there was contributory negligence - whether injury occurred during or in the use or operation of a motor vehicle within meaning of s 3 of the Motor Accidents Compensation Act 1999; DAMAGES - assessment of heads of damage claimed by plaintiff
Legislation Cited:	Motor Accidents Compensation Act 1999, s 3 Workplace Injury Management and Workers Compensation Act 1998
Cases Cited:	Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 658 Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 Haines v Bendall [1991] HCA 15; (1991) 172 CLR 60 Inasmuch Community v Bright & Anor [2008] NSWCA 99 JA & BM Bowden & Sons Pty Ltd v Doughty [2009] NSWCA 82 Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1 Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 228 CLR 529 State of NSW v Moss [2000] NSWCA 133 Tchen v Nominal Defendant [2010] NSWCA 245 Vairy v Wyong Shire Council [2005] 223 CLR 442 Zotti v Australian Associated Motor Insurers Limited [2009] NSWCA 323
Texts Cited:	-
Category:	Principal judgment
Parties:	Paul Chaseling (Plaintiff) TVH Australasia Pty Limited (Defendant)
Representation:	Mr M Perry (Plaintiff) Mr PN Khandhar (Defendant) Taylor & Scott (Plaintiff) Hicksons (Defendant)
File Number(s):	2009/336695
Publication restriction:	No

Head of Damage claimed by plaintiff	Plaintiff's Submissions	Defendant's Submissions	Award	Paragraphs
(a) Non economic loss	$225,000	$125,000	$225,000	[95] - [101]
(b) Past loss of earnings	$68,576	$62,400	$62,400	[102] - [104]
(c) Future loss of earning capacity	$159,033	$100,000	$195,000	[105] - [136]
(d) Past loss of superannuation benefits	$7,543	$6,865	$6,864	[137]
(e) Future loss of superannuation benefits	$17,494	$Nil	$21,450	[138]
(f) Future out-of-pocket expenses	$50,928	$30,000	$60,000	[139] - [155]
(g) Past out-of-pocket expenses	$141,561	$141,561	$141,561	[156]
Totals	$670,135	$465,826	712,275